CAAFlog » Court-Martial News

The Commandant’s interview with NPR on Monday (discussed in this post) is generating controversy because of apparent contradictions in his statements during the interview and between the interview and statements by other senior Marine leaders, according to this Marine Corps Times story. The story includes the following interesting paragraph:

Later, in August 2012, Amos emailed Mills to convey displeasure with the general’s intended approach to notifying the media about three cases that had been disposed of via nonjudicial punishment. “Rich,” Amos wrote, “if this is our official press release, then I don’t like it at all. We routinely publish NJPs in base newspapers to include specific charges, the names, and the punishments allotted. This smacks of us not doing anything punitively — ie, “an administrative procedure” — and looks like we are trying to hide evidence. I want somebody to come back to me this afternoon to talk about this.”

(emphasis added). Readers may be familiar with the significant disclosure limitations for nonjudicial punishment records contained within paragraph 0115 of the Manual of the Judge Advocate General of the Navy (JAGINST 5800.7F) (link).

According to an Associated Press story, a new prosecutor has been assigned to replace LTCOL Helixon whose departure from the BGEN Sinclair case generated a lot of discussion in this post from last week. According to the AP story (last paragraph) the new prosecutor has “indicated that the woman’s immunity agreement remains intact and that the case will proceed to trial.”

In the here-we-go-again category, The Washington Times reports that: “Sen. Kirsten Gillibrand will get her second shot to strip military commanders of their ability to decide whether to convene a trial in sex-assault cases as the Senate prepares to return to the issue next month.”

While not a military justice case, Stripes has this story of a former Army sniper who received a Bronze Star for actions in Afghanistan, but who after returning home realized that “there was a hole in his life, but he found a way to fill it: robbing banks.”

And finally, also from The Marine Corps Times is this article entitled: Sex assault and the pressure to prosecute: why some Marines fear justice is no longer blind. Captain Nicholas Stewart – whose conviction for aggravated sexual assault was set aside by CAAF in United States v. Stewart, 71 MJ 38 (C.A.A.F. 2012) (CAAFlog case page), due to a combination of a poorly-drafted charge and bad instructions from the military judge – is featured prominently in the piece.

In a nearly nine minute piece on today’s Morning Edition broadcast (audio available here) (transcript at the same link), General Amos talked about a wide range of topics, including his new “reawakening” campaign against misconduct, sexual assault cases, and the Commandant’s role in the Afghanistan urination prosecutions.

The Marine Corps Times has coverage of the interview in this story, with a focus on the urination cases.

A few commenters have noted this New York Times story about the ongoing court-martial of Army Brigadier General Sinclair for sexual assault and other charges:

The departure of the prosecutor, Lt. Col. William Helixon, came just days after defense lawyers said in interviews that the colonel told them that he had come to believe that a jury would not believe the testimony of the prosecution’s chief witness, a 34-year-old captain.

A sentence mid-way through the article explains that, “Maj. Crystal Boring, a spokeswoman at Fort Bragg, N.C., said in an email that Colonel Helixon voluntarily left the case for ‘personal reasons.’”

In last Friday’s news, I noted that Senator Gillibrand announced that her “Military Justice Improvement Act” legislation would come to the Senate floor for a vote this week. And earlier this week Sam discussed a competing proposal from Senator McCaskill. But it seems that Senator Gillibrand’s announcement was premature. The legislation doesn’t appear among the Senate’s votes from this week, and the Senate will meet only in pro forma sessions from now until the afternoon of Monday, February 24 (according to a unanimous consent reached during Wednesday’s session).

Sergeant Hutchins has been arraigned, trial is set for August, and the military judge denied Hutchins’ motion for him to recuse himself, according to this NBC San Diego story from Thursday that includes the following:

Hutchins claims that the judge and the defense attorney appointed for him cannot fairly participate in his case because they are unduly influenced by the Secretary of the Navy, who has publicly commented about Hutchins’ guilt.

In an interview after today’s hearing, Hutchins told reporters that any judge or defense attorney appointed by the Defense Service Organization is compromised because “they don’t want to go against the Secretary of the Navy.”

In the Naval Academy football players’ case, an Associated Press story details a major hurdle for the prosecution:

The judge, Col. Daniel Daugherty, asked prosecutors to tell to him how they plan to prove their theory of the case against Joshua Tate of Nashville, Tenn., who has been charged with aggravated sexual assault and lying to investigators. Prosecutors will respond in writing by the end of the week. Daugherty suggested he would then rule at some point next week on a motion by Tate’s lawyers that he dismiss the case for lack of evidence.

Various media outlets are closing in on command investigations addressing some of the circumstances surrounding Staff Sergeant Bales’ massacre of 16 Afghan civilians (for which he was sentenced to confinement for life without the possibility of parole after pleading guilty):

After Bales’ court-martial, The News Tribune and KUOW submitted FOIA requests to the Army seeking what is known as a command climate investigation. The Army carried out that inquiry to assess whether senior soldiers around Bales could have prevented the crimes.

Finally, a sexual assault case that Air Force Lieutenant General Franklin dismissed after an Article 32 investigation, leading his superiors to remove the General from the case, is now being re-investigated:

Wright faced an Article 32 last year to determine if there was enough evidence to proceed to court martial. But Third Air Force commander Lt. Gen. Craig Franklin elected in August to drop the charges, while refusing the alleged victim’s request to meet with him.

The unusual do-over that began Tuesday at Joint Base Andrews was ordered by top Air Force officials concerned with decision-making by Franklin. The general, who announced he would retire last week, became a lightning rod for criticism of the military’s handling of sex crimes after he overturned the sexual assault conviction of a fighter pilot last February.

His decision was a key rallying point for legislators, victim’s advocates and others who want to change the Uniform Code of Military Justice to strip military commanders of control over prosecutions. The Pentagon and the service branches, however, have argued such a move would hurt military order and discipline.

Outside the hearing this week, the accuser’s special victims counsel — an Air Force attorney who works specifically for the victim’s interests, rather than for the prosecution or defense — said the previous Article 32 was biased against the woman, and featured badgering questioning from the investigating officer.

According to this report, Army LT Behenna was granted parole by the Army Clemency and Parole Board effective March 14.

Behenna, who shot and killed a detainee named Ali Mansur in Iraq in April 2008, was convicted at a general court-martial in March 2009, contrary to his pleas of not guilty, of unpremeditated murder and assault consummated by a battery, and was sentenced to a dismissal, total forfeitures, and confinement for 25 years (reduced by the convening authority to 20 years, and then by the clemency and parole board to 15 years). Appeals followed, and the findings and sentence were ultimately affirmed by CAAF in United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (link to slip op.) (CAAFlog case page). A subsequent petition for certiorari was featured on SCOTUSblog, but the Court denied review in June 2013.

Thanks to reader “D” for the tip.

Update: Make that February 7…

Reader “M” forwards on this story from Stripes about a Washington State military family that’s looking for some additional income:

Kathy, a South Kitsap resident, saw once-in-a-lifetime potential in the newly legalized marijuana industry.

She spent months last fall combing through the state’s Liquor Control Board rules, lining up investors and nailing down locations for three retail stores. After filing applications with the state, she had one more thing to do: tell her husband.

Kathy’s spouse is an active duty military service member. He happened to be deployed and out of contact during the months she was making her plans. Kathy broke the news of her planned business venture when he returned this month. He was surprised but supportive.

“He said ‘it sounds like a great opportunity, let’s do it,’” said Kathy, 29, who asked her last name and details of her husband’s service be withheld.

The story asks “Can an active-duty spouse sell pot?” Article 81 comes to mind:

ARTICLE 81. CONSPIRACY (a) Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

“The sexual assault trial of a former football player at the U.S. Naval Academy has been scheduled for March 14,” reports The Washington Post.

According to this press release from Senator Gillibrand, the Senate will vote on the “Military Justice Improvement Act” next week. The text of the bill is available here, and includes this limitation:

(4) Requirements and limitations.–The disposition of charges pursuant to paragraph (1) shall be subject to the following:

(A) The determination whether to try such charges by court-martial shall be made by a commissioned officer of the Armed Forces designated in accordance with regulations prescribed for purposes of this subsection from among commissioned officers of the Armed Forces in grade O-6 or higher who–

(i) are available for detail as trial counsel under section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice);

(ii) have significant experience in trials by general or special court-martial; and

(iii) are outside the chain of command of the member subject to such charges.

The Associated Press reports the results of its own review of sexual assault courts-martial (alternative version of the story here), and it’s predictably haphazard:

The records, obtained by The Associated Press through the Freedom of Information Act, open a rare window into the opaque world of military justice and show a pattern of random and inconsistent judgments.

The AP analysis found the handling of allegations verged on the chaotic, with seemingly strong cases often reduced to lesser charges. In two rape cases, commanders overruled recommendations to court-martial and dropped the charges instead.

Even when military authorities agreed a crime was committed, the suspect was unlikely to serve time. Nearly two-thirds of 244 service members whose punishments were detailed in the records were not incarcerated. Instead they were fined, demoted, restricted to their bases or removed from the military. In more than 30 cases, a letter of reprimand was the only punishment.

Finally, over at the Commissions there is new pressure on the chief prosecutor, General Mark Martins, for his public comments about the commissions process. The New York Times reports:

The defense team lawyers for one of the five Guantánamo Bay detainees charged with aiding the Sept. 11 terrorist attacks are seeking to muzzle the chief military commissions prosecutor, saying that his comments defending the tribunals system — including in a recent “60 Minutes” interview — are unethical and that they are undermining their client’s right to a fair trial.

According to this San Diego Union-Tribune story dated today, Sgt Hutchins – whose murder conviction was reversed in United States v. Hutchins, No. 12-0408/MC (C.A.A.F. 2013) (CAAFlog case page), and whose retrial was last mentioned by Mike in this post – wants new detailed defense counsel based on the fact that the appellate military judge who disagreed with him at the NMCCA is now the Chief Defense Counsel of the Marine Corps

The potential conflict originates from public comments made in November 2009 by Navy Secretary Ray Mabus, comments that Hutchins unsuccessfully argued had tainted his appeals process. The judge who ruled against Hutchins on that issue on a Navy-Marine Corps Court of Criminal Appeals panel, Col. Joseph Perlak, is now chief defense counsel of the Marine Corps.

Hutchins asked that Navy Capt. Paul LeBlanc, who oversaw the reversal last year by the military’s highest appeals court of Hutchins’ convictions, serve as acting chief defense counsel for the retrial. He also requested a new military judge, telling Col. Michael Richardson “I object to you or anyone else who falls under the Secretary of the Navy being my military judge.”

Mabus, who is traveling overseas, has previously declined to comment on allegations by Hutchins of unlawful command influence.

Richardson declined to recuse himself from Wednesday’s hearing at Camp Pendleton and said he doubted there were grounds to disqualify him as judge for the court martial. But he granted the request to delay arraignment until Feb. 13, giving the Marine defense chain of command time to evaluate whether a conflict of interest exists and, if needed, assign new counsel.

“I’m not going to go further until we ensure there is an attorney sitting next to you fully capable of representing you,” Richardson said.

Capt. Eric Skoczenski told the military judge that he agreed with Hutchins that he should be removed as defense counsel, because of a “potential and inevitable conflict of interest” arising from his chain of command.

The government objected, with Marine Capt. Peter McNeilly saying “there is no conflict in our eyes. … The allegations against Col. Perlak we believe are spurious.”

The use of the hard word “spurious” threw me for a bit, as there is plenty of support for the motion for  a new defense counsel (and the detailed counsel’s agreement that there is a conflict is likely dispositive). But the word appears to be in response to the following Defense claim (found on the second page of the article):

In a motion filed late Tuesday to suspend the proceedings until he could be assigned a “conflict-free judge advocate,” Hutchins signaled that his defense at court martial would include litigating the issue of possible unlawful command influence because of Mabus’ public comments. “One aspect of this litigation will include developing evidence that Col Perlak’s decision … was tainted by both actual and apparent unlawful command influence,” it says.

Though, that doesn’t actually provide any more support for the use of “spurious,” considering the independence of the CCA was challenged in Hutchins’ brief to CAAF (as discussed in my argument preview).

Thanks to reader M for the news tip.

Speaking of Hutchins, here is LA Times coverage of the decision to retry Sergeant Hutchins for the alleged 2006 murder of an unarmed Iraqi civilian in Hamdaniya

From the Navy Times.

Navy Times has this piece on the court-martial for a dereliction of duty charge against a master diver relating to the training deaths of two divers.

The services released a joint report on sexual assault at the US military academies, see AP coverage here and report here (link currently unavailable, DoD SAPR service academies reports page here). And it’s bad news for athletes at the academies as the report is highly critical of their behavior, accordionng to the AP report:

A culture of bad behavior and disrespect among athletes at U.S. military academies is one part of the continuing problem of sexual assaults at the schools, according to a new Defense Department report that comes in the wake of scandals that rocked teams at all three academies last year.

In Edward Snowden news, The Hill reports here that the House Intelligence Committee says that they have a report from DoD showing terrorists are changing tactics, and putting US troops at risk, in light of the revelations by Snowden.

DoD’s panel to study sexual assault and military justice policy is apparently meeting behind closed doors, even when hearing from just legal experts. Coverage here (US News). According to the article, the panel known as the Response Systems to Adult Sexual Assault Crimes Panel (or 576 Panel, for the section of the NDAA that created it), says it isn’t subject to open meeting rules, which is a non-sensical reason for not holding open meetings. Transcripts of panel and subcommittee meetings are available on the website, see e.g. a Jan. 8, 2014 meeting of the Role of the Commander subcommittee meeting here. Monthly public meetings are held, including one to be held on Jan. 30, 2014 on the role of the commander, though the site of the hearing hasn’t been announced yet. For full disclosure, several current and former NIMJ leaders are members of the Panel or it’s subcommittees, including former NIMJ President Professor Elizabeth Hillman.

The Navy may dismiss charges against one ofbteo remaining former Midshipmen football players accused of sexual assault due to a failed rights advisement reports the Blatimore Sun here.

Navy has established a consolidated disposition authority for non-criminal misconduct arising from the Glen Defense Marine Asia scandal (or as we call it Fat Leonard-gate) reports Navy Times here.

A Navy environmental sturdy in Naples may help prosecute Italian mob figures acc used of dumping toxic waste. Stripes coverage here.

LTG Craig Franklin, a central figure in much of the 2013 sexual assault issues in our recent Top 10 list, will give up a star to retire immediately reports Air Force Times here.

Afghan President Karzai still plans to release potentially dangerous prisoners reports WaPo here, and potentially impacting the long term security agreement between the US and Afghans. Prior coverage here.

Hard to tell if this was an early Christmas gift for General Sinclair or a lump of coal in his stocking:

A soldier who had an affair with a Fort Bragg general found numerous emails and voice messages from him on an old phone last month, prompting a delay in his court-martial.

Brig. Gen. Jeffrey Sinclair faces charges that include forcible sodomy, indecent acts, violating orders and adultery. His court-martial was scheduled to begin Tuesday but has been pushed back to March 4.

The charges stem from allegations that Sinclair twice sexually assaulted a captain with whom he had a three-year affair and that he had inappropriate relationships with five other women, including some subordinates.

The captain, who served with Sinclair in Iraq and Afghanistan, said during a pre-trial motions hearing Tuesday that she found an iPhone that she stopped using years ago in a cluttered box on Dec. 9. She found messages from Sinclair, including some under his alias of “Nathan,” and immediately turned the phone over to Army investigators.

Report via, here.

Our #2 story of the year was the court-martial of Major Hasan, the Fort Hood shooter. We ended last year with CAAF granting a petition for extraordinary relief and removing the military judge and ordering a new one be assigned. Col Tara Osburn, USA, was then assigned. Major Hasan’s court-martial was last year’s number two story of 2012.

For all the tragedy of the victims and court-room drama leading up to the trial, the trial itself was relatively uneventful. The defense rested without putting on any evidence. Major Hasan acknowledged he was the shooter at the beginning of the trial. He was convicted of 13 specifications of premeditated murder and 32 specifications of attempted murder. He was sentenced to death after less than two hours of deliberations.

The trial was most notable for Major Hasan’s decision to represent himself. After firing his lawyers, the MJ granted his request to represent himself. His counsel, who continued to be available to assist him, described his actions as a “working towards the death penalty” according to the Washington Post.

I once did extensive research, attempting to look at all Article 118(1) & 118(4) cases preferred since 1984 to identify predictors of convening authorities’ decisions to refer cases capitally and on members awarding death as a punishment. We started with the thought that perhaps there were racial trends we could identify. What we found was the unsurprising conclusion that the number one predictor of capital referrals and capital sentences in Article 118(1) cases was multiple victims. That certainly held true in Major Hasan’s case.

Of course, Major Hasan will receive automatic review from the Army Court of Criminal Appeals. As this CNN report points out, the reversal rate for death-penalty cases in the military on direct review is very high. This report cites a 82% reversal. These numbers are since 1984, when President Reagan implemented R.C.M. 1004.

One issue that lurks in the case highlights some of the paternalism that still lingers in the military-justice system. Major Hasan attempted to plead guilty, but his plea was rejected by the MJ. Article 45(b), UCMJ prohibits a guilty plea to a capital offense. In theory, this denied Major Hasan the mitigating effects of a guilty plea. Is it remotely conceivable that ACCA or CAAF will rule Article 45(b), UCMJ unconstitutional and reverse? Probably not, but if they did, it would probably make our top ten list in future years.

Number three this year looks a lot like #3 last year, the PFC Manning case has been a media darling, earning multiple spots on our top ten list. But alas Bradley Manning’s time in the spotlight has run its course. His case finally made its way to court-martial and resulted in a sentence of confinement for 35 years, report here. While his supporters may bring the case back to life when the appellate process starts to drag on, and it will, for now we may have seen the end of 24/7 Manning coverage around the globe. Here’s a recap of this year’s festivities.
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